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Allahbad High Court
M.H.BEG
Bharosa - Appellant
Versus
State - Respondent
Decided On : 07/08/1964
CRIMINAL APPEAL - Murder - Conviction under S. 304, Part I, Penal Code and Ss. 326 and 323, Penal Code read with S. 34, Penal Code - Sentence of seven years' R. I. reduced to four years' R. I. - Facts and circumstances established that the accused persons were the initial aggressors in company with Sobaran - Injuries on the body of Sobaran were clearly directed towards bringing about his death - Larger number of injuries on the accused persons or exceeding the right of private defence cannot wipe out the criminal liability of the accused persons for the initial attack.
Fact of the Case:
The appellants were charged with offences under Ss. 148, 302/149, 328/149 and 323/149, Penal Code and were convicted under S. 304, Part I, Penal Code and Ss. 326 and 323, Penal Code read with S. 34, Penal Code, in each case, and were sentenced to seven years, four years, and six months' R. I. respectively. The prosecution case was that Shiv Dayal deceased Girdhari and Bijai, who were alleged to be in possession of plot No. 131 of village Usari Khurd, in the district of Azamgarh had obtained a decree on 13-7-1962 from the Court of a Munsif restraining Sobaran and others from interfering with what was held to be the decree-holder's possession over plot No. 131. It is also the prosecution case that 9 days after this decree, on 27-7-1962, Shiv Dayal, Girdhari, Hira, (P.W. 6) and Bijai (P.W. 1) were ploughing plot No. 131 as well as the adjoining plots Nos. 130 and 132 when Sobaran (also deceased) and the accused person came armed with lathis and spears and asked Shiv Dayal not to plough there as an appeal was going to be filed against the decree.
Finding of the Court:
The court found that the prosecution version as to how the fight started between the two sides is correct beyond reasonable and that the version sought to be proved by the appellants could not possibly be correct. The court also found that the attack was made on a sudden quarrel in the heat of passion.
Issues: 1. Who was the aggressor in the fight between the two sides? 2. Whether the injuries on the body of Sobaran were caused by the accused persons in the exercise of their right of private defence? 3. Whether the sentence of seven years' R. I. awarded to the appellants under S. 304 Part I read with S. 34, I.P.C. was excessive.
Ratio Decidendi: 1. The court held that the accused persons were the initial aggressors in company with Sobaran. The court relied on the following factors to arrive at this conclusion: a. The larger number of injuries on the body of Sobaran and the accused persons as compared to the injuries on the complainant's party. b. The nature of injuries on Sobaran which were clearly directed towards bringing about his death. c. The fact that the accused persons sustained larger number of injuries or that the complainant's party may have exceeded their right of private defence cannot wipe out the criminal liability of the accused persons for the initial attack. 2. The court held that the injuries on the body of Sobaran were not caused by the accused persons in the exercise of their right of private defence. The court relied on the following factors to arrive at this conclusion: a. The fact that the accused persons were the initial aggressors. b. The nature of injuries on Sobaran which were clearly directed towards bringing about his death. c. The larger number of injuries on the body of Sobaran and the accused persons as compared to the injuries on the complainant's party. 3. The court held that the sentence of seven years' R. I. awarded to the appellants under S. 304 Part I read with S. 34, I.P.C. was excessive. The court took into account the following factors in reducing the sentence: a. The fact that the attack was made on a sudden quarrel in the heat of passion. b. The probability that the worst offender was Sobaran who was killed. c. The fact that the appellants must have learnt a lesson by Sobaran's death.
Final Decision: The court dismissed the appeal with the modification that the sentence of seven years' R. I. awarded to the appellants under S. 304 Part I read with S. 34, I.P.C. was reduced to four years' R. I.
BEG, J. -The appellants Bharosa, Charittar and Shital were charged with offences under Ss. 148, 302/149, 328/149 and 323/149, Penal Code and the learned Judge who tried them together with the acquitted accused persons, Dwarika and Deoraj, took the precaution, very properly, of charging them in the alternative with offences under Ss. 302, 326 and 323, Penal Code - with the aid of S. 34, Penal Code. Charittar appellant was also charged separately under S. 302, Penal Code. The appellants were convicted under S. 304, Part I, Penal Code and Ss. 326 and 323, Penal Code read with S. 34, Penal Code, in each case, and were sentenced to seven years, four years, and six months' R. I. respectively.
2. According to the prosecution case, Shiv Dayal deceased Girdhari and Bijai, who were alleged to be in possession of plot No. 131 of village Usari Khurd, in the district of Azamgarh had obtained a decree on 13-7-1962 from the Court of a Munsif restraining Sobaran and others from interfering with what was held to be the decree-holder's possession over plot No. 131. It is also the prosecution case that 9 days after this decree, on 27-7-1962, Shiv Dayal, Girdhari, Hira, (P.W. 6) and Bijai (P.W. 1) were ploughing plot No. 131 as well as the adjoining plots Nos. 130 and 132 when Sobaran (also deceased) and the accused person carne armed with lathis and spears and asked Shiv Dayal not to plough there as an appeal was going to be filed against the decree. The defence also admits that Shiv Dayal had obtained a permanent injunction, but it is alleged by it that Sobaran was actually in possession in spite of the decree obtained on incorrect allegations. The defence case also is that Sobaran did not come in the company of other accused persons but came alone to request Shiv Dayal and others not to plough the field as he was in possession. It is also alleged here by the defence that there were mends between plots Nos. 130 and 131 and 132 which were being ploughed up by Shiv Dayal and others so that Sobaran had to come and protest.
3. It is after the arrival of Sobaran and the altercation that is said to have taken place between Sobaran and his party and Shiv Dayal and others that a marpit between the two sides is said to have taken place. Shiv Dayal died as a result of the injuries inflicted upon his person in the course of the marpit, and Sobaran died on the side of the accused persons. The injuries on the body of Sobaran were 15 altogether which included six contused wounds on the head, two punctured wounds on the chest, one each side, and one punctured wound on the right arm, two on the right thigh and one on the right leg. A glance at these injuries shows clearly that whoever attacked Sobaran did not intend to leave him alive and that the object of the attack was not merely to kill Sobaran but also to do it in a vindictive fashion. In other words, these injuries were apparently the result of some frenzy generated by a powerful feeling such as the death of a person on the side of those who inflicted the injuries on the body of Sobaran. The injuries on the body of Shiv Dayal deceased were only four out of which three were contused wounds on the head and one was a punctured wound in the chest. These injuries could certainly result from a sudden onslaught by several individuals armed with lathis and ballams. In addition, Bijai (P.W. 1) received an incised wound and two penetrating wounds and Hira (P.W. 6) had four injuries. On the side of the accused, Shital had four injuries and Bharosa had eight. Out of these, there was one injury with a sharp edged weapon on Shital and one injury with a sharp edged weapon on Bharosa. If we do not take into account the injuries of the two women, Smt. Samarthia, widow of Sobaran, and Smt. Jhunia, her relation who had only a contusion on her right thumb, the male persons on the side of the complainant sustained only 11 injuries whereas there were 27 injuries on the side of the accused out of which 15 were sustained
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